Teacher was promoted to Lead Educator
A teacher was hired in 2006 by a not-for-profit childcare and early learning centre in Brisbane. The childcare company had 671 childcare centres with 17,500 staff across Australia. The teacher held various roles throughout her employment: Director, Group Leader. The position the teacher held before her termination was that of Lead Educator.
Employer implemented mandatory flu vaccination for all staff
Because of the pandemic, the childcare company decided on requiring all their staff to be vaccinated against influenza. The vaccine was provided to the staff for free and only those who have a medical condition that will make it dangerous for them to take the influenza vaccine will be exempt. All employees who sought exemption from the mandatory flu vaccination had to submit a medical certificate.
Dept. of Health recommended flu vaccine for all childcare workers
The childcare centre sent an email to the teacher informing her that the Department of Health of Queensland had recommended that all employees and staff of childcare centres be vaccinated against the flu.
Teacher objected to the mandatory flu vaccine policy
The teacher replied to the childcare company by saying that she refused to take the flu vaccine as it might compromise her health.
Teacher’s first medical certificate
The teacher provided a medical certificate stating that she suffered from coeliac disease or refractory coeliac disease type 1. Coeliac disease is an autoimmune disease that made the teacher’s immune system sensitive.
Employer sought more information from teacher’s doctor
The childcare company sought advice from their Safety Team before deciding to grant an exemption to the mandatory flu vaccine policy. In the meantime, the childcare company also wrote to the teacher’s physician seeking more information that will explain why a flu shot may endanger her health. The childcare company informed the teacher that the Safety Team were reviewing the two medical certificates she had submitted.
Teacher’s second medical certificate
Eleven years prior to her dismissal in August 2020, the teacher also took a flu vaccine and developed an allergic reaction to the flu vaccine. The teacher submitted a second medical certificate from her doctor however, the medical certificate was vague. It said that the teacher said she had had an allergic reaction to a flu vaccine several years before but that the doctor had no record of her allergic reaction in their surgery. The teacher insisted that her two medical certificates indicated that it may be unsafe for her to have the influenza vaccine.
Teacher called to a consultation meeting
The teacher was invited to a consultation meeting to discuss her objections to the mandatory vaccine policy. She was also informed that her continued refusal to be vaccinated may be a breach of her employment contract and other policies of the childcare company and relevant legislation.
Teacher’s written reply
The teacher alleged that when she had last had a flu vaccine, she suffered from migraine headaches. She had read the package inserts of the flu vaccine that had been administered to her and one of the side effects of the flu vaccine was an increased risk of developing autoimmune disease. The teacher agreed to ask her doctors to sign a form provided by the childcare company stating that the teacher was a conscientious objector. She was unable to obtain such a statement from her doctors. Her doctors informed her that to get an exemption on the basis of an allergic reaction, the allergic reaction must be severe as to cause anaphylactic shock.
Termination from employment
The childcare company reviewed all the information supplied by the teacher as well as her objections and other responses to the childcare company regarding the mandatory flu vaccination policy and found that she had failed to provide a valid reason to be exempted from the mandatory flu vaccine. She was then informed that her continued employment hinged on her getting vaccinated. The teacher was terminated for breach of company policy; that is, that by failing to submit to the mandatory flu vaccination, she failed to meet the inherent requirements of her role as an educator.
Application for unjust dismissal
The teacher said that a week before the childcare centre informed her that her objection was not substantiated, the childcare centre had already advertised the opening of a position of teacher at the centre where the teacher was still working. Applicants were interviewed and the successful applicant began working a week after the teacher was dismissed. The teacher sought reinstatement to her former position
Teacher felt she was treated unfairly
The teacher alleged that there were five educators at the centre where she had worked who had objected to getting the mandatory flu vaccine and only four submitted medical objections. She claimed that one employee objected without providing a medical reason. The three other employees that had submitted medical objections had not been vaccinated and they still remain employed by the childcare centre.
Flu vaccine not inherent requirement of her teaching role
She also claimed that receiving a flu shot was not an inherent requirement of her role. It had nothing to do with her physical, mental capacity to teach and mind children. The teacher submitted that she had not given valid consent to be vaccinated nor did she waive her right to give consent when she entered employment. If not for the new policy of mandatory flu vaccination, the requirements of the position were still the same. And in order for the policy to be an inherent requirement of the job of a teacher, the mandatory requirement must be lawful.
Mandatory flu vaccine an assault on her body
The teacher further argued that for her employer to force her to be vaccinated violated her right to determine what should be done to her body.
Fair Work Commission found valid grounds for dismissal
The FWC found that there was a valid reason for dismissal because the teacher failed to comply with the lawful and reasonable direction of the childcare company to be vaccinated. However, the FWC clarified that the childcare company should have dismissed the teacher for misconduct instead of dismissing her for lack of capacity to continue employment because vaccination is not an inherent requirement in caring for children.
Mandatory vaccination, lawful and reasonable requirement
The childcare company’s policy to require its staff to be vaccinated against the flu (whilst in the middle of a pandemic) was a reasonable and lawful direction. The employer has the right to direct the employee. This right stems from the employer’s power of control over their employees. At the same time, employees owe their employers obedience and compliance with reasonable and lawful directions. And when an employee fails to comply with the employer’s lawful and reasonable direction, there is a valid reason for the employer to dismiss the employee.
Childcare company has legal duty to ensure safety of children
The childcare company itself is under obligation to comply with its legal duty to ensure the health and safety of its employees and the children they care for. The childcare company cannot put the children at risk of harm by allowing unvaccinated employees to care for them. The childcare industry is highly regulated and child safety is of utmost importance because children are vulnerable. The childcare company’s failure to implement measures to prevent transmission of infectious diseases in their facility will open the childcare company to liability.
Vaccines are effective means to control spread of infection
Vaccines are an effective and accepted measure to control the spread of infectious diseases. It is used along with other control measures such as basic hygiene, frequent hand washing, wearing of masks, disinfection of premises, etc. Vaccination is also highly recommended by the government’s health department especially in childcare environments where young unvaccinated children cannot be isolated or socially distanced from the staff.
Childcare company has legal duty to ensure safety of staff
By requiring the staff to be vaccinated, the childcare company was ensuring the safety of its staff. In the childcare environment, staff are exposed to biological hazards from the children they care for such as vomit, faeces, urine, saliva and tears. These are ways by which infection may spread and the company has to protect its workforce.
Allowing medical exemption made the requirement reasonable
The childcare company’s requirement was reasonable and lawful because they allowed their employees to apply for a medical exemption. The teacher failed to present such a valid medical exemption. An expert witness testified that the information provided by the teacher cannot be taken as evidence of a medical barrier for the teacher to receive vaccination.
Teacher had a statutory duty not to adversely affect health and safety of others
While it is true that the mandatory vaccination policy was not included in the teacher’s contract of employment, the teacher was under obligation from her contract of employment not to adversely affect the health and safety of other persons.
Vaccination was a way to fulfil that legal obligation.
It was an inherent part of her role to comply with that requirement to fulfil her statutory duty and by refusing to get vaccinated, she failed to comply with the statutory duty to ensure that her actions did not adversely affect the health and safety of others.
The dismissal was not unfair and lawful.
In investigating sexual harassment, employers cannot focus only on the applicant’s feelings to the exclusion of the factual context of the allegations